Rights or Benefits? The Indian Supreme Court and Criminal Procedure

Date01 June 2019
Publication Date01 June 2019
DOI10.1177/2277401719870003
AuthorAbhinav Sekhri
SubjectArticles
Article
Rights or Benefits? The
Indian Supreme Court
and Criminal Procedure
Abhinav Sekhri1
Abstract
This article suggests that the recent decisions by the Indian Supreme Court in
Mohan Lal v. State of Punjab, and Varinder Kumar v. State of H.P., are perhaps
indicative of a more pervasive trend that stretches back to the dawn of the due
process era in Indian law. This trend is one where the Supreme Court is con-
fronted with systemic issues in the criminal process while dealing with petitions
brought by singularly oppressed litigants, and it treats the litigation itself as a
means to solve the perceived problem. The tool to solve these problem in the
criminal process is the creation of new criminal procedure rights through the
vehicle of Article 21. In its reformist zeal, scant attention is paid to the several
important questions of scope and consequential remedy that are inherent to any
notion of rights. Over time though, the Court seems to realise that hard cases
make bad law. And when cases involving seemingly undeserving litigants start
invoking those procedural rights, the Court signals a retreat and transforms the
‘right’ into a ‘benefit’, that it can dole out in only the most deserving cases. This
is not a definitive study, but only offers a different perspective to examine the
Supreme Court’s contribution to the field of criminal procedure.
Keywords
Criminal procedure, fundamental rights, due process, judicial process
Journal of National
Law University Delhi
6(1) 12–20, 2019
2019 National Law
University Delhi
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/2277401719870003
journals.sagepub.com/home/jnl
1 Advocate, Delhi High Court, New Delhi, India.
Corresponding author:
Abhinav Sekhri, Advocate, Delhi High Court, New Delhi 110503, India.
E-mail: asekhri@llm18.law.harvard.edu

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